Confessions Checklist Step 1: Was s statement voluntary? Step 2: Was questioned outside the presence of counsel?

ounsel? Step 3: Was in custody when statement was made? Step 4: Was statement made in response to known police interrogation? Step : Were Miranda warnin!s !i"en? Step #: $id intelli!entl% and knowin!l% waive &oth the ri!ht to remain silent and the ri!ht to an attorne%?

Confessions Checklist '(panded 1: )*+,-./01-'SS o Rule: &efore a confession of !uilt will &e allowed to &e admitted into e"idence2 and presented to the 3ur%2 the trial 3ud!e must find that it was "oluntaril% made &% a preponderance of e"idence 4Lego v Twomey51 Note: /dmission &% 3ud!e does not preclude s a&ilit% to challen!e "oluntariness of confession at trial6 o Subjective Test: under totalit% of circumstances2 was s will actuall% o"er&orne2 considerin! the followin! factors: s personal characteristics: Age Education Physical or Mental Condition -ature of detention 7anner of interro!ation ,se of force2 threats2 promises or deceptions Rule: statements o&tained throu!h deceit are !enerall% admissi&le as lon! as deceit does not nullif% Miranda warnin!s2 circum"ent ri!ht to counsel2 o"er&ear the indi"iduals will2 or call into question relia&ilit% of the statement6 o /dmission of coerced confession is su&3ect to harmless error test6 2: 0189. .* C*,-S'+ o Rule: ri!ht to counsel is "iolated is after ad"ersar% 3udicial proceedin!s ha"e &e!un2 the police question : outside the presence of counsel: or without a "alid wai"er of the ri!ht to counsel o Analysis: Did the right to counsel attach? Rule: #/ ri!ht to counsel cannot &e "iolated &efore formal proceedin!s ha"e &e!un ;i6e62 once is char!ed with offense<6 o Note: ma% ha"e a / ri!ht to counsel under Miranda6 Was questioned? Rule: #/ ri!ht to counsel is "iolated as lon! as incriminatin! information was deli&eratel% elicited from without the presence of counsel 4U v! "enry56 Were questions specific to offense committed?

Connect to Habeas Corpus: voluntariness is an issue of law that must be decided independently by the federal court in an HC proceeding.

Rule: onl% statements relatin! to the crime char!ed will &e held inadmissi&le= statements a&out crimes for which ri!ht has not attached ;i6e62 char!es ha"ent &een &rou!ht< are full% admissi&le at trial on those char!es 4#llinois v! Perkins5

Was lawyer present at interrogation? Courts are more likel% to find the ri!ht to counsel "iolated when police do not allow law%er to assist in interro!ation 4$rewer v! %illiams5

3: M#&AN'A W/0-1-8S o Rule: when a law enforcement officer interro!ates a suspect in custod%2 officer must inform suspect of ri!hts2 warn her of consequences of wai"in! ri!hts2 and o&tain a wai"er: otherwise2 an% confession made &% the suspect is inadmissi&le to pro"e suspects !uilt 4Miranda v! Ari(ona5 Scope: this applies to &oth misdemeanors and felonies 4$erkemer v! McCarty5 o 8*)'0-7'-. /C.1* Rule: if the detainee does not know that the person questionin! him is a police officer2 Miranda warnin!s need not &e !i"en6 o C,S.*$> Rule: a person is in custod% if his freedom of mo"ement has &een limited &% the police6 Objective Test: a person will &e found to &e in custod% if a reasona&le person under the circumstances would feel that his freedom of action was denied in a si!nificant wa% ;su&3ecti"e characteristics i!nored< 4)ar*orough v! Alvarado56
o +ro(co v! Te,as=at 4 /72 four officers entered s house2 went to his &edroom2 awakened 2 and &e!an to question him a&out a murder6 ,nder these circumstances2 a reasona&le would not feel free to lea"e6

.he mere fact that the inter"iew took place at a police station is presumpti"el% custodial as lon! as suspect is free to lea"e6
o +regon v! Mathiason-a police officer left a note to call officer6 When called2 officer asked to come to station near s apartment6 When arri"ed2 officer assured that he was not under arrest2 &ut asked to step into office6 confessed2 then he was !i"en Miranda warnin!s6

o 1-.'00*8/.1* 0ule: the police conduct an interro!ation when the% should know that their actions are reasona&l% likel% to elicit an incriminatin! response from the suspect )olunteered statements2 spontaneous remarks not made in response to questionin!2 are not co"ered6 .he court has defined this narrowl%=the followin! are not sufficient: merel% informin! a suspect that she is under arrest questions are part of a le!itimate police procedure ?not intended to elicit 4info5 for in"esti!ator% purposes@ ;e6!62 &ookin!2 field tests< 4Pennsylvania v! Muni(5 merel% hopin! that will incriminate herself

'(amples
&hode #sland v! #nnis= was arrested for murder that took place near a school for children with disa&ilities6 While transportin! 2 officer stated that he hoped none of the children came upon the weapon6 9eld: -o interro!ation=nothin! to su!!est that officer knew that was peculiarl% suscepti&le to an appeal to his conscience concernin! the safet% of children with disa&ilities6 Ari(ona v! Mauro= indicated desire to remain silent6 Aolice allowed his wife2 upon her request2 to talk to him6 *fficer was present and tapeBrecorded con"ersation6 Aolice admitted: the% knew incriminatin! statements were likel% &e made if con"ersation took place6 9eld: -o interro!ation6 #llinois v! Perkins-police placed underco"er a!ent in cell of 2 who was in custod% on a char!e of a!!ra"ated &atter%6 1n response to questions &% a!ent2 made incriminatin! statements a&out a murder unrelated to &atter% char!e6 9eld: -o interro!ation6 o This could violate ! right to counsel??

o W/0-1-8S Rule: all suspects in custod% which the police wish to interro!ate are to &e informed of their ri!hts2 with no presumption of an% prior awareness of those ri!hts6 right to remain silent anything you say can be used against you at trial right to the assistance of a lawyer if you cannot afford a lawyer, the government will provide one de minimis variation: the warnin! does not ha"e to &e "er&atim if it co"ers all the &ases required &% Miranda 4'uckworth v! Eagen5 question first, warn later: if police o&tain a confession from without !i"in! warnin!s and then !i"e warnin!s to o&tain a su&sequent confession2 it will !enerall% &e admissi&le =unless police intentionall% schemed to hold off on warnin!s in order to !et confession 4Missouri v! ei*ert56

o W/1)'0 Rule: !o"ernment &ears the &urden of showin! that knowin!l% and intelli!entl% wai"ed her pri"ile!e a!ainst selfBincrimination and ri!ht to counsel6 Standard: preponderance of e"idence 4Colorado v! Connelly56 Test: totalit% of circumstances= o Waiver can be e"press or implied 4North Carolina v! $utler5 o #uveniles more closely scrutini$ed 4.are v! Michael C!5 o ASS RT!O" O# $A R!%&T TO 'O("S ) *(R!"% !"T RRO%AT!O" Rule: if after recei"in! warnin!s2 informs officers that she wishes to speak to an attorne%2 the% ma% not su&3ect him to further interro!ation until his attorne% has &een made a"aila&le=oCw / ri!ht to counsel is "iolated 4Edwards v! Ari(ona5 "ot offense+specific: once cuts off questionin!=she ma% not &e questioned a&out an% offense2 included one unrelated to initial interro!ation 4Ari(ona v! &o*ertson5

Note: if suspect initiates su&sequent con"ersation and totalit% of circumstances indicate a wai"er of Miranda ri!hts2 interro!ation ma% continue 4+regon v! $radshaw5

4: ')1$'-.1/0> 1SS,'S o /dmissi&ilit% *etermination, /dmissi&ilit% is determined outside the presence of 3ur% 4/ackson v! 'enno5 o -urden: preponderance=&orne &% !o"ernment6 -o use of corro&oratin! e"idence to support admissi&ilit% &armless rror, Rule: if inadmissi&le confessions are erroneousl% admitted into e"idence2 a resultin! con"iction need not &e re"ersed if there is other o"erwhelmin! e"idence of !uilt6 !mpeachment, Rule: confessions merel% o&tained in "iolation of Miranda are admissi&le to impeach defendants trial testimon% 4"arris v! N)5